Emer's Camper Corral, LLC v. Alderman

• Decision Date: 21 May 2020
• Docket Number: No. 2018AP458,2018AP458
• Citation: 391 Wis.2d 674,2020 WI 46,943 N.W.2d 513
• Parties: EMER'S CAMPER CORRAL, LLC, Plaintiff-Appellant-Petitioner, v. Michael A. ALDERMAN, Alderman, Inc. d/b/a Jensen-Sundquist Insurance Agency and Western Heritage Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

391 Wis.2d 674

943 N.W.2d 513

2020 WI 46

EMER'S CAMPER CORRAL, LLC, Plaintiff-Appellant-Petitioner,

v.Michael A. ALDERMAN, Alderman, Inc. d/b/a Jensen-Sundquist Insurance Agency and Western Heritage Insurance Company, Defendants-Respondents.

No. 2018AP458

Supreme Court of Wisconsin.

Oral Argument: November 25, 2019

Opinion Filed: May 21, 2020

For the plaintiff-appellant-petitioner, there were briefs filed by Steven L. Miller and Miller Appellate Practice, LLC, River Falls, WI. There was an oral argument by Steven L. Miller.

For the defendant-respondent, there was a brief filed by Rolf E. Sonnesyn, Beth L. LaCanne, and Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, Minnesota. There was an oral argument by Rolf E. Sonnesyn.

KELLY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL BRADLEY, DALLET and HAGEDORN, JJ., joined. ROGGENSACK, C.J., filed a dissenting opinion.

DANIEL KELLY, J.

¶1 Emer's Camper Corral, LLC ("Camper Corral") thought its insurance agent had acquired a policy with a deductible of $1,000 per camper in the event of hail damage with a $5,000 aggregate deductible limit. In actuality, the policy required a $5,000 deductible per camper, with no aggregate limit. Camper Corral did not discover the truth until after a hailstorm damaged many of the campers on its lot.

¶2 Camper Corral sued its insurance agent, Michael A. Alderman, and Alderman, Inc. d/b/a Jensen-Sundquist (collectively, "Mr. Alderman") claiming he was negligent because he procured a policy that did not conform to its requirements.¹ The circuit court directed a verdict because Camper Corral's failure to introduce evidence that an insurer would have insured the company with the deductible limits it thought it had meant that it had not proven a causal link between the agent's negligence and the sustained loss.²

¶3 We granted Camper Corral's petition for review to determine whether it must prove not just that an insurance policy with the requested deductibles was commercially available, but also that an insurer would actually write that policy for Camper Corral in particular. We hold that commercial availability is insufficient to establish causation; Camper Corral must also prove it would have qualified for an insurance policy with better terms than the policy it actually obtained. Therefore, we affirm the court of appeals.

I. BACKGROUND³

¶4 Camper Corral (owned by Rhonda Emer and her husband) has been in the business of selling new and used camper trailers since approximately 2004.⁴

Since shortly after it started business, Camper Corral has obtained its insurance through its agent, Mr. Alderman. In approximately 2007, it contacted Mr. Alderman to obtain an insurance policy to cover its camper inventory.

¶5 Mrs. Emer said Camper Corral's first garage policy (issued by General Casualty in 2007) included coverage for hail damage. She said it carried a $500 deductible per camper and, to her knowledge, had no aggregate limit on the deductible. The General Casualty policy commenced on September 30, and expired on September 30 of the following year. Succeeding policies commenced immediately upon expiration of the preceding policy.

¶6 In 2011, Camper Corral sustained approximately $100,000 in damages to numerous campers in a hailstorm. Camper Corral submitted a claim to General Casualty pursuant to the policy then in effect. General Casualty duly paid the claim and subsequently renewed Camper Corral's policy under the same terms for the 2011-2012 policy period. Camper Corral again sustained hail damage totaling approximately $100,000 in the summer of 2012. As before, General Casualty paid on the claim, but this time it sent Camper Corral a non-renewal letter prior to commencement of the 2012-2013 policy term.

¶7 Mr. Alderman told Camper Corral that its next insurance policy would have to come from "other markets," which Mrs. Emer understood to mean that Camper Corral would likely pay higher premiums and would have less favorable deductibles. Ultimately, Camper Corral obtained coverage for the 2012-2013 policy period from Western Heritage Insurance Company ("Western Heritage"). Mrs. Emer said she knew this policy contained a $5,000 deductible per camper for hail damage. She also said she understood that, due to Camper Corral's recent claims history, she could not obtain a policy with more favorable terms. Mr. Alderman told her that if Camper Corral remained claims free for one to two years, he could potentially get the deductible down to $1,000 per camper. She understood, however, that this was a goal—not a promise that it would be possible.

¶8 Camper Corral did, in fact, go claims free during the 2012-2013 policy period. According to Camper Corral, as the 2013-2014 policy period approached, Mr. Alderman contacted Camper Corral with the "great news" that he had obtained a policy from Western Heritage with a $1,000 deductible per camper for hail damage with a $5,000 aggregate deductible limit. Unbeknownst to Camper Corral, however, the 2013-2014 policy placed by Mr. Alderman with Western Heritage actually required a $5,000 per camper deductible with no aggregate limit.

¶9 In August 2014, Mr. Alderman contacted Camper Corral to discuss policy options for the upcoming 2014-2015 period. Mr. Alderman explained that he had obtained quotes from Western Heritage (the current provider) and Erie Insurance Company, an insurance company in the standard market. According to Mrs. Emer, he indicated that both quotes offered a $1,000 per camper hail deductible and that the Western Heritage quote had the same terms as the soon-to-expire 2013-2014 policy. Before the two could meet to discuss the quotes, however, Camper Corral sustained hail damage to 25 campers in its inventory on September 3, 2014. As a result, Erie rescinded its quote. Western Heritage, however, could not rescind its quote because, according to Mrs. Emer's trial testimony, the hail damage claim occurred within 60 days of the renewal period.

¶10 After the hail event on September 3, 2014, Mrs. Emer discovered that the 2013-2014 Western Heritage policy actually contained a $5,000 per camper deductible for hail damage rather than the $1,000 deductible she thought it had, and that there was no aggregate deductible limit. With damage to 25 campers, Camper Corral's total deductible came to $125,000.

¶11 Camper Corral's lawsuit against Mr. Alderman claimed he breached his duty of care to Camper Corral by obtaining a policy for the 2013-2014 period with a $5,000 per camper deductible despite being aware that Camper Corral desired coverage with a lower deductible. The Complaint alleges that Mr. Alderman is liable in the amount of $120,000—the difference between the $125,000 deductible Camper Corral paid for the September 3, 2014 hail event and the $5,000 aggregate deductible Camper Corral believed it had obtained for the 2013-2014 policy period.

¶12 Mr. Alderman moved for summary judgment, arguing that Camper Corral's negligence claim must fail because there was no evidence that Mr. Alderman had caused Camper Corral's damages. The circuit court denied the motion and the case proceeded to a jury trial.

¶13 Before submitting the case to the jury, Mr. Alderman moved for a directed verdict challenging the causal connection between Camper Corral's damages and his failure to obtain an insurance policy with the desired terms. Specifically, he argued there could be no causal connection unless Camper Corral had been eligible for an insurance policy with the more favorable terms it believed it had for the 2013-2014 policy period. The circuit court took the motion under advisement and counsel for Mr. Alderman then read the deposition testimony of Robert Sutton, an insurance expert Camper Corral had hired but did not call at trial, to the jury. As relevant here, Mr. Sutton stated that, because of Camper Corral's claims history in 2011 and 2012, it was not possible for Camper Corral to have obtained an insurance policy with a $1,000 hail deductible and $5,000 aggregate deductible for the 2013-2014 policy period. Mr. Alderman then renewed his motion, which the circuit court granted. The circuit court stated that "[t]he evidence presented in this case through the testimony and the exhibits presents no evidence that the policy ... was available or could have been available[,]" and therefore the claim failed as a matter of law.⁵

¶14 The court of appeals affirmed, noting that "no credible evidence was introduced at trial to support a finding that, absent Alderman's alleged negligence, Camper Corral could have obtained a policy with a hail damage deductible of less than $5000 per unit.... The circuit court's assessment of the evidence was not ‘clearly wrong.’ "

Emer's Camper Corral, LLC v. Alderman, 2019 WI App 17, ¶24, 386 Wis. 2d 592, 928 N.W.2d 641 (internal citation omitted). We granted Camper Corral's petition for review and now affirm the court of appeals.

II. STANDARD OF REVIEW

¶15 "A motion for a directed verdict challenges the sufficiency of the evidence."

Marquez v. Mercedes-Benz USA, LLC, 2012 WI 57, ¶47, 341 Wis. 2d 119, 815 N.W.2d 314 ; see also Wis. Stat. § 805.14(4) (2017-18)⁶ ("In trials to the jury, at the close of all evidence, any party may challenge the sufficiency of the evidence as a matter of law by moving for directed verdict ...."). The court may grant the motion if it "is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party." § 805.14(1). Where a circuit court grants a motion for a directed verdict, we will uphold the circuit court's decision unless the circuit court was clearly wrong. Gagliano & Co., Inc. v. Openfirst, LLC, 2014 WI 65, ¶30, 355 Wis. 2d 258, 850 N.W.2d 845 (citing Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 389, 541 N.W.2d 753 (1995) ) (when reviewing a ...